July 13, 2006

DoJ Denies Hamdan Touches NSA Spying

by Kagro X

Yes, I told you this yesterday. But that was just some lowly staff attorney, forced to argue the brief he'd prepared prior to Hamdan, right?

So for clarification, we now turn to the Justice Department brass. Assistant Attorney General Bill Moschella explains it all for the slow of mind and other peasants, like one Chuck Schumer of New York, NY:

Our initial impression is that the Court's opinion does not affect our analysis of the Terrorist Surveillance Program.

So good day, all! Thanks for playing!

Anonymous Liberal picks up the story, (I forwarded the letter to him, after receiving it from our pal, Adam B.) and performs a genuine analysis, as opposed to my hit-and-run. But here's the gist of it:

I've previously noted that the Supreme Court's decision in Hamdan
fatally undermined the only two legal theories the Bush administration
has ever offered in defense of its warrantless surveillance program
(theories which, by the way, were borderline frivolous even before Hamdan). ...

Well, sadly, it appears I had a little too much faith in the integrity of the government's lawyers. In response to a letter from Senator Schumer concerning the application of Hamdan to the "Terrorist Surveillance Program," the Department of Justice has drafted a letter reaffirming its position that the AUMF and article II authorize the President to disregard the prohibitions of FISA. As David Barron
puts it, the DOJ's response is, essentially, "Hamdan, Schmamdan" (a big
hat tip to David for highlighting these letters and posting them on his
site).

Well, better late than never, in some cases. Me, I lost faith in the integrity of the government's lawyers back when they took advantage of the judicial branch's built-in safety valve against "criminalizing politics", and decided to overrule the entire voting rights staff in approving facially discriminatory Congressional redistricting plans.

It's all of a piece, to my mind:

Just as with Plamegate and all "stovepiping" progeny, where the claim
will be that it's within the presidential prerogative to redirect (and
if necessary, reassemble from spare parts or whole cloth) the
authorized and legitimate intelligence services of the United States.
And just as with DeLay's money laundering, with the K Street Project,
with Jack Abramoff's staggering corruption, and with who knows what
else is yet to be unearthed, where the claim is that to single such
activity out is to "criminalize politics," so with the Texas
redistricting do we see that it is the intention of the occupying
forces to actively employ the standards of deference ... as cover for their wrongdoing, because they know
that no courts (save the "activist" ones!) have the tools to reach them
without throwing out time-honored and otherwise quite reasonable
restraints against the (real) government's power to levy punishment and
mete out justice.

No surprise, then, to see the "administration" back in court, claiming Hamdan is of no effect beyond its four corners, and failing that, that the "state secrets" privilege precludes all inquiry.

Jack Balkin[correction: Marty Lederman. Jack discusses this here] weighs in on the issue of the letters, thus:

Whatever else one may think of the DOJ’s arguments in support of the NSA program, the notion that Hamdan
"does not affect" the relevant legal analysis is so implausible as to
suggest either bad faith or an audacious design by the Administration
to provoke a confrontation with the Court (a confrontation that the
Administration must suspect it would almost certainly lose if the case
were considered by the current array of SCOTUS Justices). [Emphasis mine.]

Ah, there it is. Bad faith -- the very thing which must be demonstrated by the Texas redistricting plaintiffs to overcome the presumption that the DoJ's rubber stamping is within legal bounds.

An audacious design by the Administration to provoke a confrontation with the Court -- the very thing which Mark Tushnet's "constitutional hardball" article describes as necessary to remaking the constitutional order.

Now, we're onto something.

Keep in mind in all of this that these practicers of bad faith, these audacious designers, are the very people we'll be asking to execute the enforcement of Congressional subpoenas in the event the Democrats can successfully launch investigations into the "administration's" activities.

Not only does the emperor have no clothes, the emperor might not even be leading a government, in the sense that you and I and everyone else in America have ever understood it.

Comments

The New Yorker reminds us that the Supreme Court has already said, in Nixon's day, that “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.” So, not the first time Dick Cheney (or Donald Rumsfeld) have had their wrists, or their consorts' wrists, slapped. Yet they keep fighting the same legal wars that have already been lost.

Before typepad exploded last night, I was going to ask this naive question: supposing Democrats control Congress next year and launch investigations and issue subpoenas -- should we be expecting the White House to completely ignore them, on the same all-powerful executive branch theory? Or is it beyond debate, even to Bush's lawyers, that Congress is able to force them to appear?

Hard to say. Or rather, hard to believe that we really have to speculate on this at all. But a White House not inclined to comply has many options: engaging in the same, confusing type of exchange as previously occured between Gonzales and Feingold; showing up and simply lying; or blowing the whole thing off. And probably shades in between.

It depends on who approaches the question, and how. It is doubtless beyond debate that the Congress has the right to expect that they appear. But depending on who's answering, you'll get a different response to whether or not they can force them to appear.

You can try to shame them into appearing, making their refusal so politically costly that they give in and have to go with one of the variants of the first two options listed above. But force? Ultimately, no. A no-show will probably draw contempt of Congress charges. But those warrants are, in the end, enforced by the executive branch -- the DoJ. So that's no help.

I guess if you're really talking about going all the way through the looking glass, you could explore "inherent contempt," under which Congress would claim the right to actually try and imprison the contemnor itself. But at that point, we're already talking about a trial on the Senate floor, so why not go all the way and talk impeachment?

I suppose it's theoretically something you could see if the Senate were to turn over to Democratic Control but not the House, meaning that there were no articles of impeachment forthcoming. But I don't think there's anyone who thinks the Senate Democrats have the guts for that. Including, of course, the potential contemnors.

so it sounds like whatever may happen then, it is not something they are laying groundwork for in their arguments in cases like this NSA one, which is where I was going with that thought. Is that right?

by the way, your comment gave me a flashback to mid-November 2000, when "Constitutional Crisis?" was on the screen under every talking head. To misquote 'wag the dog', "that was NOTHING!"